Responses on Non-American Views of the ATS, and Marko Milanovic’s Response to Eric Posner

by Kenneth Anderson

Eric Posner picks up on Marko Milanovic’s very interesting comments in response to my question below about the views of non American international lawyers of the ATS. I’m going to pull up interesting responses to my question into this separate post – currently from Marko, Francisco Forrest Martin, and I’ll update if others add things to the bottom of the post. (I have also included below Marko’s response to Eric in comments at Volokh, as Marko was not entirely happy with Eric’s riff.) But here is a bit of what Eric comments on Marko’s comment; Eric discusses Koh’s views of transnationalism, but I want to pull away from Koh’s views back to the more general question of the ATS as seen by non-American international lawyers and legal scholars:

[F]oreigners do not approve of ATS litigation. Foreign countries do not have their own ATS-style litigation and indeed shudder at American tort litigation of any type.

Many (most? all?) foreign international lawyers believe that ATS litigation violates international law. They believe that the American tort system is a lunatic asylum in which international law undergoes electroshock therapy and emerges with its shell intact but otherwise unrecognizable—wild-eyed, harboring delusions of grandeur, and babbling a pidgin that incorporates strange American legalisms and pieties. Foreign governments believe that ATS litigation infringes on their sovereignty and complain that it punishes multinational corporations for doing business with them. Both groups believe ATS litigation reflects the typically American blend of naiveté, arrogance, and power that ends up tying foreigners to the rack of American ideals. When Americans tire of using tanks to inflict their ideology on foreigners, they use lawyers. On the foreigners’ view, if international criminals are to be punished, they should face criminal, not tort, liability meted out by an international court (ideally) or, in some cases, a domestic criminal court that has a proper basis of jurisdiction in international law. International law, grounded as it is in the consent of states, supports no other outcome.

I should add that the usual response when I have questioned the ATS as a sort of parochial version of international law is to say that it is not ‘international law’ at all. It is, rather, US tort law in which the starting gate is a question of international law; it is irrelevant whether it imposes tort liability or enterprise liability at the end of this entirely US process because although it uses international law as a trigger, it is not international law in substance or process. I think that is not really correct as a characterization, and I’ll come back to that on a separate occasion, but leaving that aside, the point remains that even its usage in this American tort process, if that’s what it truly is, filters and alters the content of the ‘law of nations’ through a thoroughly American lens.

Moreover, as Eric notes, the imposition of liability according to these American rules – whether they used international law as a trigger or not, simply the way in which they assert jurisdiction over parties – itself is arguably a violation of international law, a view that is, I believe but certainly can’t offer any evidence for but private conversations, widespread among non-American international lawyers. In other words, there are several different ways in which one might object to the ATS as problematic from the standpoint of international law – its use as a trigger, the effects the cumulative use of that trigger has on the ‘international’ law filtered through American litigation process, but also, quite separately, the jurisdictional assertions made by non-American plaintiffs over non-American defendant enterprises in apparently unrelated American courts. The former are issues of international law and its usage in an American process; the latter is an objection to an American long arm statute, originally to protect foreigners from biased US state courts in diplomatic questions, but today dressed up as a quasi-question of universal jurisdiction.

Like you, I am unaware of much non-US scholarship on US ATS jurisprudence (with one or two major exceptions, to which I’ll turn later). Again, like you, I can only offer anecdotal evidence, as well as my own views on the matter (which I think that most non-US scholars share, but of course I have no way of proving that).

So, to my mind at least, the whole theory that that there is such a thing as tort responsibility of individuals or non-state actors in international law is completely unsupported. If I commit a crime against humanity and incur individual criminal responsibility at the international level, that does not mean that I have simultaneously incurred civil or tort responsibility at the international level towards the victims of my crimes. International law has historically not regulated such private relationships, and even individual criminal responsibility – where the offense is committed against the international community as a whole – is of fairly recent extraction. The idea that such tort responsibility existed two hundred years ago when the ATS was drafted is (with all due respect, etc., etc.) completely bonkers.

I must emphasize that I don’t think that this is so because of some orthodox grand theory of international legal personality or subjecthood that excludes individuals. There is in principle no conceptual obstacle to having tort responsibility at the international level – if criminal responsibility of individuals can exist at the international level, so can civil. It’s just that there is no or very little evidence, save for US ATS case law, that such responsibility exists.

Now, this is my impression what the mainstream position is in non-US academia. As a purely normative matter, I also think that most non-US scholars think that having tort responsibility at the international level would be too chaotic, too unilateral and potentially disruptive to offset the little practical use that it would have (correct me if I’m wrong, but it’s not as if victims of atrocities have actually managed to obtain much in the way of actual cash from ATS litigation so far).

So, to sum up, to most non-US scholars what the US does through ATS litigation is not seen as an actual application of international law, but more as an exercise of some sort of universal civil jurisdiction to prescribe domestic tort law.

As for your question why non-US scholars are not actively engaged in debunking (what we see) as an improper interpretation of international law in US courts and the mainstream US legal academia, perhaps a part of that answer is the one that you suggest, namely that we don’t want to interfere with some sort of ’socialization’ of the US with international law.

However, I think that on the whole the more weighty reason for not engaging with this issue is that most non-US scholars think that, well, this wouldn’t be worth the effort. Legal scholarship is by definition an exercise in persuasion, and I doubt that the generally favorably disposed (liberal majority of the) US legal academia towards the whole ATS stuff would be persuaded to the contrary by external scholarship any more than it is by its conservative counterparts. (The same goes for endless debates within the US re the status of international law in the US legal system, etc.) Thus, the general attitude is live and let live – if international law is what US scholars think that they are doing with this whole ATS stuff, then so be it.

Again, this is my own impression of the mainstream views in the non-US legal academia. That doesn’t mean that there are no dissenting views on the matter. Perhaps it would be of use to consult Andrew Clapham’s work on the human rights obligations of non-state actors, which is certainly of major importance – though I (and most people, I think) remain respectfully skeptical of it. If I recall correctly, he does indeed discuss the US ATS jurisprudence at some length to support his main argument.

Hope this was of help.

Marko also responds to Eric in the comments at Volokh:

Dear Prof. Posner,

Though I am of course as happy as ever for you or any other scholar of note to reference one of my posts, I must also say that I honestly do not appreciate the way that you’ve used my answer to Ken Anderson’s question at OJ to launch yet another of these endless attacks on Harold Koh. I had no intention to imply – as you have basically made it seem – that all US lawyers, Koh being one of them, who support ATS litigation are fundamentally dishonest about it and don’t show ‘decent respect for the opinions of mankind.’

I happen to think that they are wrong in their interpretation of international law, and that at least a part of the unwillingness to consider the wrongness of their position is a product of ideological conflicts raging within the US academia and society as whole. That does not mean that there is no room for reasonable disagreement. Nor does this mean that all who participate in this ideologically skewed debate, on one side or the other, are by definition some sort of political hacks. Most, if not all, of the most controversial issues in contemporary US legal scholarship, e.g. originalism in constitutional interpretation, are similarly politically and ideologically polarized, yet this does not render all contributions in such debates worthless (far from it), nor every contributor dishonest. It is just that it makes outsiders, such as myself, wary of engaging with them.

At any rate, I hope that you and your readers appreciate the irony in using a post by someone lamenting the adverse impact ideology can have on a rational debate to launch an ideological and political attack against somebody else. I would really, really appreciate it if you could update your post so that it reflects my profound disagreement with, well, everything else that you’ve said. Many thanks, and kind regards,

Marko Milanovic

And Francisco Forrest Martin:

The law of nations historically has governed the relations between private individuals and recognized civil remedies for law of nations violations. For example, the lex mercatoria was one of the earliest bodies of international law. And, the law of nations governing piracy recognized that private persons could seize piratical vessels and receive the proceeds from the sale of such vessels as a prize award. The idea that international law recognized rights and duties for private individuals is certainly not “bonkers,” as Prof. Milanovic put it. I don’t know where this idea that international law historically never governed the relations between private persons came from. It’s just not true.

Actually, the idea that the law of nations only governs relations between states probably came from Bentham, who first coined the phrase “international law” and limited the law of nations to relations between states. James Wilson appears to have corrected him in his lecture “On the Law of Nations.”

(Thanks to our commenters. I will add more if I receive more.)

Let me add something else, particularly if students are surfing here looking for quick directional pointers for research. I have been asking mostly about the views of non-American international lawyers and international law scholars. I’m also interested in the question of what foreign courts or international tribunals have said in reference to the ATS or comments by foreign governments, but what I was curious about here was mostly about scholarly or practicing international lawyer commentary or analysis from the perspective of ‘outside the US’. That said, a good place to find discussion of what has been said in litigation over, for example, transnational investment is the excellent article coming out soon (or out?), Michael Ramsey, International Law Limits on Investor Liability in Human Rights Litigation, 50 Harvard International Law Journal (2009), on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1307362. See the footnotes for helpful research directions. Here is the SSRN abstract:

This Article assesses efforts in U.S. courts, principally under the federal Alien Tort Statute, to hold foreign investors indirectly liable for human rights violations committed by the governments of countries in which they do business. Such claims, though intended as remedies for international law violations, raise substantial tensions with international law in two respects. First, to the extent they purport to regulate the non-U.S. activities of non-U.S. entities, they may conflict with international law principles of prescriptive jurisdiction, which limit a nation’s ability to regulate the extraterritorial activities of non-nationals. Although an exception for universal jurisdiction allows nations to punish a few especially heinous international crimes without regard to territory or citizenship, it seems difficult to establish universal jurisdiction for most indirect investor liability claims, and in any event U.S. courts appear to have lost sight of this limitation. Second, investor liability suits may misconceive the source of customary international law principles. Because customary international law arises from the actual practices of nations followed out of a sense of legal obligation, its content cannot be derived from analogies to nations’ practices in areas that are factually and normatively distinct. The only reliable evidence of nations’ practices is what nations actually have done with respect to investor liability, and there is no consistent practice of imposing indirect liability on investors for host government abuses. While international law allows the United States to impose indirect investor liability upon its own corporations, the United States cannot claim to be doing so as matter of enforcing existing international law, as the Alien Tort Statute appears to require, nor can it-consistent with international law-impose liability upon non-U.S. entities over which it lacks prescriptive jurisdiction.

And as Ed Whelan points out (with alas unnecessary hyperbole), judges on the ICJ, including the human rights scholar Thomas Buergenthal, have expressed some caution about the reach of the ATS:

[T]hree prominent judges on the International Court of Justice—the president of the ICJ, the English barrister Rosalyn Higgins, and the American judge and human-rights law expert Thomas Buergenthal—have criticized the “very broad form of extraterritorial jurisdiction” that American courts exercise in ATS litigation: “While this unilateral exercise of the function of the guardian of international values has been much commented on, it has not attracted the approbation of states generally.” Democratic Republic of the Congo v. Belgium (Case concerning Arrest Warrant of 11 April 2000)[2002] ICJ Rep 3 at 77 (para 48) (concurring opinion of Judges Higgins, Kooijmans and Buergenthal). Further, the House of Lords has declared ATS litigation “contrary to customary international law.” Jones v. Saudi Arabia, [2006] UKHL 26 (para 99). And, as this Solicitor General’s brief makes clear, Switzerland has condemned the assertion of ATS jurisdiction over its own nationals with regard to their conduct in a third country as “inconsistent with established principles of international law,” and the United Kingdom and Germany have similarly protested that such assertion “infringes the sovereign rights of States to regulate their citizens and matters within their territory.”

That is still a remarkably small body of commentary on so celebrated an American practice with increasingly large implications for non-American plaintiffs, non-American corporate defendants, conduct unrelated except by the reach of the statute to any American territory, party, or conduct. So my interest has been to wonder why there is not more commentary on it in Europe, for example, among international lawyers and scholars – also wondering if perhaps there is and I just hadn’t heard about it, though that seems doubtful. The court commentary and filings by governments are easier to come by, I suppose. I will continue to update this post with things that come to my attention, so that it has links to some of these materials, primarily thinking of people looking for a fast way into a relatively obscure area of comment.

17 Responses

Ken,

Your points are very well taken, but don’t you think it’s a tad ironic to complain that the ATS “filters and alters the content of the ‘law of nations’ through a thoroughly American lens,” given the Bush administration’s insistence that it could unilaterally dictate the laws of war?

Well, I have mixed feelings about it. The draft article for EJIL I was citing in the earlier post is a high altitude discussion of ways in which international criminal law is reshaping international law more generally, sometimes intentionally and sometimes not, but not mostly taking a position on whether that is good or bad – rather, trying to identify things that might not have been noticed and collect them all in one place. My views on how international law is made – by consent through explicit treaty and then through custom through state practice and opinio juris – are consistent with states jostling over the content of international law and moving and shaping it.

I’m hostile to the ATS mostly for other reasons than its possible conflicts with the rest of international law. Here, I am trying to understand how non-American lawyers who embrace international law as something much more ‘authoritative’ than I do might see the ATS rather than judge the ATS as such.

At its broadest, I am interested here in the question of what might turn out to be fragmenting ‘communities of interpretation’ of international law, which is one of the observations of the EJIL piece. And whose subeditor is demanding revisions even as I write this … world of OJ, a temporary adieu!

I have to confess, listening to conservatives like Eric Posner bemoan how ATS litigation violates international law is completely surreal. America violates international law by refusing to investigate and prosecute torturers? No problem. But America violates international law to compensate the victims of human-rights abuses, that’s unforgivable…

For a Canadian perspective, Opinio Juris blog readers may be interested in an article by Prof. Trevor Farrow of Osgoode Hall Law School, “Globalization, International Human Rights, and Civil Procedure” (2003) 41:3 Alberta Law Review 671, available in pdf format on Prof. Farrow’s faculty webpage: <http://osgoode.yorku.ca/osgmedia.nsf/research/farrow_trevor_c_w&gt;

Here is the abstract:

This article discusses the modern convergence of three traditionally separate topics: globalization and international human rights on the one hand, and civil procedure on the other. Its project is two-fold: first, to highlight domestic legal processes and communities in the advancement of the post-World War II international human rights project. Second—in contemplation of the specific context of teaching civil procedure—to help bring alive the power and increasingly-global context of civil procedure for the benefit of students.

If I may give my opinion from the other side of the Atlantic, I think that two issues must be carefully distinguinshed here:

First, whether ATS is an expression of true public international law or simply of domestic US tort law that applies to particular cases. As has already been pointed out, it seems clear that we are dealing with the latter, for US courts are free to call “international law” whatever they wish, or indeed to call it something else. In a way, attributing this to international law serves to mask that this is a body of law that is the creation of American courts. An interesting parallel in France is the way French courts have developed a separate body of law applicable to international arbitration, which they claim to construe from “principles of international arbitration law”. Like in the case of the ATS, the correct phrase would have been “French principles applicable to international arbitration”.

The second question is whether the universal application of a special part of US tort law violates public international law. This would mean that a rule exists in public international law obliging countries to limit their regulation territorially or according to some other criterion. Unfortunately, I don’t think that such a rule exists, countries being generally free to set whichever principles of private international law they wish, and in fact that there are other examples of countries exerting universal jurisdiction (in France for instance, over a case of slavery that had no connection with France). If courts do apply domestic law abusively, then other countries will probably refuse to recognise the decision and so it will remain largely ineffective, but that’s another problem. Thus, if a US court condemns a French corporation against a French claimant for a violation of “international law” committed on French soil (say, during the Vichy regime), there is no chance that the decision will be recognised in France, and so it will be hardly of any use.

I hope this helps!

4.20.2009
at 8:50 pm EST Antonio Marzal

It looks like there’s an internal inconsistency in the opinion involving whether international law must supply the substantive rule of decision (I noticed this because of the cite :):

Compare,
Pg. 37: “Although cases in this Circuit have only required consultation of the law of nations concerning the existence of substantive offenses, the language and logic of Sosa require that this Court turn to customary international law to ascertain the contours of secondary liability as well.” (emphasis in original)

And,
Pg. 39: “. . . As the ATCA is merely a jurisdictional vehicle for the enforcement of universal norms, the contours of secondary liability must stem from international sources. Ideally, the outcome of an ATCA case should not differ from the result that would be reached under analogous jurisdictional provisions in foreign nations such as Belgium, Canada, or Spain. The task of a domestic court is to provide a forum, procedures, and a remedy. Anything more constitutes impermissible judicial policing.139

139 Cf. Anthony J. Colangelo, The Legal Limits of Universal Jurisdiction, 47 Va. J. Int’l L. 149, 150 (2006) (“If national courts prosecute on grounds of universal jurisdiction, they must use the international legal definitions – contained in customary international law – of the universal crimes they adjudicate; otherwise, their exercise of universal jurisdiction contradicts the very international law upon which it purports to rely.”).”

[SNIP]

With,
Pg. 75 “[T]he international law of agency has not developed precise standards for this Court to apply in the civil context. Therefore, I will apply federal common law principles concerning agency.”

4.20.2009
at 11:36 pm EST Anthony Colangelo

Folks,

With all due respect, there is, very simply, much nonsense in this discussion. The ATS is easily explained and understood by reference to Blackstone. Blackstone posited that the law of nations, by its nature, governed relationships between or among states. Though “adopted” in municipal law, it was incumbent upon states to make the law of nations applicable to individuals. When they did so, they created municipal law – a uniquely municipal implementation of the law of nations. Sometimes this was done in English common law fashion by the courts. At other times, it was done by implementing legislation.

This is, not surprisingly, the same approach the U.S. took to the law of war branch of the law of nations, as I have recently explained in the Journal of International Criminal Justice. Law of war violations under the Lieber Code functioned only to remove (or never provide – for unlawful participation in war) combatant immunity provided by the law of nations. U.S. military tribunals acting in the English common law tradition adopted that law and applied it to impose criminal punishment against individuals. These were not “international” war crimes, they were municipal war crimes created in U.S. municipal law. This was necessarily so as the international law of that era did not provide for punishment of individuals, only the collective remedy of belligerent reprisal or – I suppose – reparations (though it is not clear to me whether reparations were considered a viable option prior to the 1899 Hague Convention).

The key issue is not, as Marko appears to believe, whether international law directly supports the imposition of tort liability. That is a typical civil law perspective. It is whether international law permits it (see Lotus). The key issue in ATS cases is not whether individual liability is supported by international law. It is whether Congress had the jurisdiction to prescribe a municipal law imposing for extraterritorial conduct. That answer is, in most cases, no.

ATS cases have wrongly focused solely on personal jurisdiction though the real limiting issue in ATS litigation should be one of subject matter jurisdiction. International law treatises of the U.S. founding era recognized very few bases for asserting extraterritorial legislative jurisdiction. Though that list has expanded, it is not unlimited. It is highly doubtful that Congress ever intended the ATS to govern extraterritorial conduct between foreign nationals. If it were to be applied to extraterritorial conduct at all, it would be to the conduct of a U.S. national (or business/corporation) to allow a private civil remedy in place of reparations or other public remedies, such as war. The remedial right, as Ken seems to recognize, is purely municipal law. It is therefore subject to the standard limits of international law on its extraterritorial application.

At the end of the day, the non-U.S. lawyers are correct. The ATS, if not properly limited in its application by the courts (and it clearly has not been), violates international law governing the jurisdiction to prescribe law. This violates the sovereignty of other states. I simply haven’t had time to write the article on this yet.

The ATS only ‘filters’ the law of nations through a peculiar American lens because of the peculiarity of post-Erie American federal law. Prior to Erie, applying customary international law as a source of law was utterly unproblematic. Post-Erie and post-Sosa, customary international law must be deemed to be some peculiarly federalized, super-sized form of the general common law classified as the law of nations to be used as a source of law in federal courts. While this serves to filter out customary international law that might otherwise have been applicable pre-Erie, it does not and should not mean that federal judges are going to apply American tort law as if it were customary international law. Only the principles of the law of nations will apply as substantive law. The jurisdiction the ATS gives federal courts over alien third parties has been there since 1789 whether Switzerland likes it or not. In principle, it is no different from nations that work with monist as opposed to dualist theories of international law. The source of law remains the same. The ATS merely gives plaintiffs a forum to enforce it.

4.21.2009
at 9:10 am EST Russell Dees

John Dehn wrote in relevant part: ” It is highly doubtful that Congress ever intended the ATS to govern extraterritorial conduct between foreign nationals.” Because of the paucity of the ATS’ legislative history, it is difficult to discern whether Congress did or did not intend the ATS to govern extraterritorial conduct between foreign nationals. However, the text of the ATS does support its application to such relations. In order to avoid having the phrase “a treaty of the United States” in the ATS be surplusage language in light of the ATS’ inclusion of the phrase “law of nations” (which, of course, includes the conventional law of nations — including U.S. treaties), it would be appropriate to construe the ATS to apply to such relations. In a case where both a U.S. treaty and a foreign treaty govern the relations between foreign parties or a U.S. treaty conflicts with the foreign treaty, the ATS by its use of the phrase “the law of nations OR a treaty of the United States” (emphasis provided) authorizes a federal district court to apply only the U.S. treaty (and not the foreign treaty), thereby avoiding the application of a foreign treaty (which also may have been subject to different interpretations by its states-parties).

Congress appeared to have created the ATS – in part — as a land law analogue to the already well established international law of the sea that had recognized that national courts sitting in admiralty had jurisdiction over cases between foreign nationals involving extraterritorial conduct on the high seas. Of course, the U.S. federal courts sitting in admiralty already were exercising such extraterritorial jurisdiction over foreign parties.

4.21.2009
at 10:18 am EST Francisco Forrest Martin

John,

Well, I don’t know about that ‘much nonsense’ part, and I am certainly doubtful whether Blackstone really solves anything, but ok. Let me just expand a bit on how I see this whole ATS matter.

First, one could interpret the ATS as creating substantive domestic tort law for acts that would otherwise be a violation of international law. That would be so, say, if France or the US passed a statute saying that any individual or corporation that supports human rights violations by a foreign government (this allowing for a renvoi to international law) bears civil responsibility under domestic tort law. Conceptually at least, there is no problem with such a statute. The only issue that could arise is whether the state would be exceeding its jurisdiction to prescribe rules of domestic law by imposing the rules of its domestic law on natural or legal persons who have no connection to it.

But, this is not what the text of ATS actually says, and at least as far as I am aware, this is not how it is interpreted by US courts or scholars. Rather, the mainstream interpretation is that the ATS only creates the jurisdiction of federal courts for what are already substantive violations of international law. And this is where the problem lies. I, as an individual, have very few direct obligations under international law, basically in the field of international criminal law. There is no such thing as international tort law, no treaty, no custom, saying that individuals (let alone corporations) have a duty in international law to compensate people whom they kill, torture, or what have you. There are rules stipulating that STATES must prescribe such obligations of compensation in their OWN domestic law, but that is different. (This is, btw, what made the compensation scheme in the Rome Statute of the ICC so innovative.)

This is also what makes reliance by US courts on, say, the complicity jurisprudence of international criminal tribunals so very weird. That individual criminal responsibility exists in international law for a very limited set of offenses does not mean that there is such civil responsibility, let alone a corporate civil responsibility. If you disagree with my interpretation of what positive international law says, I would kindly ask you to give me some examples of treaties or (non-US) state practice and opinio juris to the contrary.

Lastly, I would just like to emphasize that this debate has nothing to do with the common law/civil law divide. There are common law countries beside the US, and none of them, NONE OF THEM, are doing what the US is doing through ATS jurisprudence. This is simply because no other state believes that international law creates individual civil responsibility, as it undoubtedly creates (post-Nuremberg) individual criminal responsibility.

4.21.2009
at 10:34 am EST Marko Milanovic

Just a couple of other points. . . . Note that like the original federal admiralty jurisdictional statute, the original ATS as a land law jurisdictional analogue also had a savings clause that gave state courts concurrent original jurisdiction. Furthermore, the original ATS gave jurisdiction over those torts committed “ONLY in violation of the law of nations or a treaty of the United States” (emphasis provided). International law almost always governs extraterritorial conduct and foreigners. That’s the whole point of international law — to acquire jurisdiction over extraterritorial conduct and foreigners.

4.21.2009
at 10:44 am EST Francisco Forrest Martin

The only Canadian case dealing with the ATS is Presbyterian Church of Sudan v. Rybiak; 2006 CarswellOnt 5781; 215 O.A.C. 140, 33 C.P.C. (6th) 27, 275 D.L.R. (4th) 512; Ontario Court of Appeal; September 26, 2006; Docket: CA C44057, which involved an appeal of an order granting a request for international judicial assistance (letters rogatory) from the United States District Court for the Southern District of New York (see, Presbyterian Church of Sudan v. Talisman Energy, Inc., 2006 U.S. Dist. LEXIS 86609 (S.D.N.Y., Dec. 1, 2006) and Presbyterian Church of Sudan v. Talisman Energy, Inc., 2006 U.S. Dist. LEXIS 42964 (S.D.N.Y., June 27, 2006; decision on appeal to Second Circuit Court of Appeals on reserve).

The respondents were all residents or former residents of Sudan who claim to have been seriously harmed by acts of genocide, enslavement, torture, rape and other human rights violations by the government of Sudan, aided and abetted by Talisman Energy Inc., a Canadian company, because of its interest in Sudanese oil. While Talisman attorned and defended before the New York court, the government of Sudan did not.

Goudge, J.A. speaking for the unanimous Ontario Court of Appeal, allowed the appeal on the narrow ground that the “request is framed in terms so broad and general that the record cannot sustain a finding that what is sought could reasonably be relevant or necessary to the issues in the litigation or could not otherwise be obtained.” However, the Court agreed with the lower court that giving effect to the foreign request would not be contrary to the public policy of Canada. In particular, Canadian public policy as expressed in the diplomatic note sent by the Canadian government to the U.S. government in January 2005 expressing concern over the extra-territorial reach of the ATS over Canadian individuals and entities and the adverse impact on Canada’s efforts to use trade incentives for Canadian exporters to encourage peaceful solutions in Sudan. Goudge, J.A. held that:

[23] …The focus on the request, rather than the underlying foreign litigation, is made clear in the passage in Zingre quoted above. Re Westinghouse Electric Corporation and Duquesne Light Co. (1977), 16 O.R. (2d) 273 (H.C.) reflects this approach as well. There it was the disclosure of the information sought, not the underlying nature of the foreign litigation, that constituted the fatal violation of Canadian public policy. In this case, Canada’s diplomatic note says nothing about the request for judicial assistance. The concerns it expresses are with respect to the underlying litigation. Those concerns will remain whether or not the request is enforced because the litigation appears to be proceeding regardless of whether the request is granted. In short, the diplomatic note expresses no concerns about the request for international judicial assistance, but does express concerns that remain undiminished whatever the fate of the request.
[24] Moreover, the diplomatic note does not go so far as to say that if the American court determines that it has jurisdiction it would nonetheless contravene Canada’s public policy for Canadian courts to accept that jurisdiction for the purposes of deciding upon the request for judicial assistance. To do so, the note would have to go beyond the concerns expressed about the litigation itself and consider as well the important principle of international comity. In this case that would include the facts relevant to that principle, such as the fact that Talisman has appeared in the American litigation and is defending it. The diplomatic note simply does address these issues.
[25] I therefore agree with the application judge that enforcing the foreign request does not contravene the public policy of Canada. The diplomatic note cannot be read as a statement of public policy requiring its dismissal.

Response… Again, not to belabor the point, but at the time the ATS was passed it was clear that the law of nations did impose obligations on individuals – e.g. the law merchant, admiralty law, etc., all of which were part of the ‘law of nations’, which in this pre-positivist paradigm was deemed ‘adopted’ into municipal law, as John Dehn correctly points out.

4.21.2009
at 12:55 pm EST Russell Dees

Marko and Francisco, thanks for your thoughtful responses. I agree that the text and missing legislative history do not directly support my point. I believe the Charming Betsy canon certainly does…as well as the very clear paucity of support for extraterritorial legislative jurisdiction of that era. The tort remedy being provided is clearly municipal law, and subject to “jurisdiction to prescribe” limits. I also agree that my approach to the topic is somewhat unique, as is my article in the JICJ, but believe it to be accurate when one understands the historical record and the relationship of the law of nations to the common law of England and the U.S.

I believe I slightly disagree with you Russell, but am open to being persuaded otherwise. To me, the law of nations was functional. It governed transactions or relationships: commercial intercourse, war, diplomatic relations…not individuals, though individuals may have received derivative benefits or obligations (diplomatic immunity and combatant immunity, for example). Municipal courts and law (particularly in civil law systems) were always required to enforce it against individuals. For example, the law governing piracy permitted any nation to impose punishment without regard to the nationality of the victim or perpetrator. It did not purport to impose punishment of its own force. That required a sovereign through the use of a municipal law consistent with the law of nations. The law of war branch of the law of nations was similar. It removed the combatant immunity of individuals violating it and permitted punishment, which required some form of municipal law.

In addition to the above-referenced article, I hope to have a follow-on article coming out in the JICJ on a related point soon. It deals with the application of municipal law defining war crimes to the conduct of foreign nationals in extraterritorial armed conflict, with specific reference to the MCA and Hamdan’s case.

U.S. scholars frequently fail to address the limits of international law on extraterritorial legislation. The reason for that is simple. The legislation is always later in time and therefore controlling as a matter of U.S. law. However, when U.S. law is silent or ambiguous on the scope of its extraterritorial application, as the ATS is, and clearly intends extraterritorial applicability, the Charming Betsy canon requires that we consider the limits of international law on extraterritorial legislative power in interpreting that legislation. When one does so with regard to the ATS, its substantive scope is greatly diminished, as I indicated above. For what it is worth to all, that is the basis of my perspective.

4.21.2009
at 1:41 pm EST John C. Dehn

An additional point for you Marko…I believe that the common/civil law distinction is very clearly influencing your view of the problem and required analysis. You are approaching the issue in a positivistic fashion, as civil law lawyers are want to do. I believe this is inaccurate both as a matter of international and, more certainly, U.S. law.

There are numerous examples of Congress providing jurisdiciton to the federal courts to apply international law but with a domestic “remedy” or remedial right – if one wants to include criminal punishment a remedy. Thus, U.S. law distinguishes between international rights and obligations and domestic remedies and punishment. Your analysis fails to do so, because it appears to me you believe international law must provide or affirmatively support the remedy. I disagree, and the reason is based entirely in the Lotus principle Blackstone’s analysis of the relationship of the common law of England to the law of nations.

The uniquely U.S. aspect to this in the context of the ATS is the civil law remedy permitted by Congress, not the common law nature of the rights or obligaitons (although state courts were left with the power to provide that remedy in the English common law tradition as well, as Francisco points out). If other common law countries have not done this, it explains why it is solely a U.S. phenomenon.

Similarly, in terms of war crimes, the Geneva Conventions and their additional protocols only required states to impose a penal sanction for grave breaches. That obligation still required municipal law to implement criminal punishment. It was not an obligation imposed directly on individuals.

As Anthony quotes from his book, municipal law enforcing international law must be consistent with international law. That does not mean that international law must affirmatively support everything a state is doing, it simply must not prohibit it. The Geneva Conventions do not provide sentencing guidelines, for example, but that does not mean that a state cannot impose criminal punishment in the form of imprisonment or capital punishment for a grave breach. (We can discuss later whether some form of international law does place a limit on this.) Again, the nature of that “remedy” is left for states to decide as a matter of municipal law. IHL requires only that the sanction be “penal”.

Interpreting ambiguous statutes to be consistent with international obligations is what the Charming Betsy canon of statutory interpretation requires as a matter of U.S. law. Only if there is a clear conflict (express or clearly implied intent of Congress to violate an international norm) is a court supposed to apply the statute under a later-in-time analysis. That all of this analysis has been inexplicably absent in ATS jurisprudence and scholarship does not mean it is inaccurate. Again, that is why we law professors have jobs, isn’t it?

4.21.2009
at 4:23 pm EST John C. Dehn

Wait, wait, wait John… it seems we are partly in agreement, and partly misunderstanding each other.

First, on remedies and rights. I am not at all disputing the possibility for Congress to provide remedies in domestic law for violations of international law. My point was that there are no rights in international law, and consequently no violations, to remedy. I have no rights vis-a-vis you under international law. If you kill me in a fit of righteous anger, you have not violated my human right to life – unless you were acting as a state actor, e.g. as a soldier. (Either way you have, of course, equally killed me.)

The point that many people are missing is that the post-WWII human rights revolution has actually AFFIRMED the state-centric nature of international law. Just look at all of the international human rights treaties – they are all prescribing what obligations of STATES are to individuals within their jurisdiction, but they say NOTHING (except in the vaguest of exhortatory terms) about the obligations of individuals to other individuals. Thus, in the case of the ECHR for example, it has been repeatedly affirmed that there exist no third-party effects, no ‘drittwirkung.’ What exists is the positive obligation of states to secure or ensure the rights of individuals even against other individuals, for instance by having an effective criminal justice system. Perhaps this lack of third-party effect will change in the future through interpretation or custom, but they still haven’t materialized.

So, if I lack any rights vis-a-vis you in international law, I also cannot have any remedies for these non-existent rights, be it in an international or in a domestic court. This is why the characterization of the ATS as a purely jurisdictional or remedial statute makes little sense. There are NO (international) rights to be remedied; Shell or BP owe me, as an individual, no obligations in international law.

This is also where your analogy with war crimes breaks down. Take an international crime – even better, take a ‘mere’ treaty crime, such as terrorist bombings. Sure, of course states can adopt their municipal law to criminalize such conduct. You can at the same time have a norm of international criminal law, and a norm of municipal criminal law prohibiting the same act. But the municipal criminal law is still SUBSTANTIVE in nature. It says, you, John Dehn, may not do X, and if you do X, the consequence is Y.

But this is not what the ATS says, nor is it how it is generally interpreted. It only says that federal courts have jurisdiction over what some OTHER body of law says are substantive violations. This is what makes no sense, because that other body of law says no such thing. (It only says for a very narrow kind of conduct that it is considered as criminal if committed by individuals.) What would make sense is to create substantive US tort law that would apply to certain factual situations. Then we would be in the familiar area of whether the US would be engaging in an exhorbitant exercise of its jurisdiction to prescribe, as we have had existed disputes for example re anti-trust law or whatever. This is where Lotus would come in (though I would caution you that very few people nowadays think that the Lotus principle is good law, at least when it comes to the law of prescriptive jurisdiction).

I of course fully accept that on the interpretation of modern international law that I give (and again, as is my impression, that practically everybody outside the US gives), the ATS as it is written is devoid of any object and purpose. Too bad for the ATS. Perhaps it can be salvaged through Charming Bettsy, as you propose, but probably not – at least this is not the position in mainstream US scholarship, which sees no issue with the ATS as we see it outside the US. What should certainly not be done is to interpret (or rather, manufacture) international law so that it is consistent with the ATS.

4.21.2009
at 5:12 pm EST Marko Milanovic

Wonderful Marko,

As clarified, I certainly agree with your position to an extent. Your point is a good one – the one the Supreme Court wrestled with in Sosa. WHICH international norms, if any, can be applied in ATS cases. On that issue, the Court did about the best it could do. Which norms Congress intended to be included in the scope of the ATS is not entirely clear. However, I believe its conclusion is the only one potentially justified.

I believe that it is fair to say, as Sosa basically did, that there are some norms that exist between states but may be derivatively applied between individuals. As you say, international law generally provides no rights or obligations directly between you and I as private citizens. However, it is not unfair to say that obligations might devolve upon us by virtue of our state’s obligation. This might happen when we act in an official capacity, but not always. Thus, the prohibition of piracy (included in Sosa‘s view of the ATS) did not depend upon an act performed in an official capacity. Quite the opposite, if memory serves piracy became then-legitimate privateering if engaged in with a letter of marque.

In the pre-conventional U.S. view of IHL, law of war violations permitted the exaction of an individual remedy from the violator, criminal punishment, and a collective remedy in the form of belligerent reprisal. According to Winthrop, the right to resort to belligerent reprisal depended upon a failure of the enemy state to punish the individual chargeable with a violation if still in their hands.

I find it interesting that there are three uniquely different obligations under the law of nations in Blackstone’s commentary referred to in the Sosa decision. Piracy was purely a private act that could be performed against public or private vessels, safe-conducts were a duty derivatively owed to individual aliens in their private capacity by a host state, rights of ambassadors were a duty derivatively owed to individual aliens in their official capacity by a host state.

Is it fair to say that these law of nations obligations, existing between states but in practice protecting their individual nationals did not also devolve to the nationals of states subject to them? Finding that to be the case might be a uniquely U.S. view. If so, it might be fair to say that both the manipulated right and the remedy are municipal.

We must also remember that at the time of the ATS, individuals acting in their official capacity but beyond the scope of their official authority were subject to personal liability in U.S. law (see e.g., Little v. Berreme). Judicial doctrines of public official immunity (and their further protection provided in the Federal Tort Claims Act) had not yet developed. For a fledgling government, granting access in the ATS to the pockets of its wayward government officials might have looked to be a good source of private (but somehow public) reparations.

Now – if the U.S. courts would only read all of this wonderful discussion, they would be back on track with ATS litigation I suppose. I’ll need to cut and paste all of this when I finally write the article. I think I need to hire a research assistant….

Thanks again to OJ for prompting another stimulating discussion.

4.21.2009
at 7:37 pm EST John C. Dehn

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